This is a much-belated blog on a topic that is probably of interest only to those interested in the most arcane of the arcane — the Logan Act, 18 U.S.C. § 953. It’s been talked-up most recently because of allegations by some that House Speaker Nancy Pelosi potentially violated the Logan Act by visiting Syria and, according to the allegations, engaging in “negotiations” with Syrian President Bashar Al-Assad. By this reading, the allegations claim that Speaker Pelosi violated the Act by illegally usurping the Executive’s solitary power to engage in foreign affairs.

Of course the truth is much more complicated than that. Facts (incorrect ones at that) get bandied about that the Act has never actually been used to indict, much less convict, anyone for the last 200 years. Other claims are that the Executive’s power over foreign affairs is not exclusive, and that it is shared by Congress. And so on.

So let me quickly disabuse people of the first claim, that is, that there has never been an indictment of the Logan Act in the last 200 years. Patently incorrect. Wrong. No cigar.

There has been an indictment, prosecution, and (apparently) a conviction. There is a case, United States v. Silverman, 745 F.2d 1386 (11th Cir. 1984), which references a companion case, United States v. Munoz. The opinion in Silverman clearly lays out the Munoz facts: Carlos Angel Munoz was charged, inter alia, under 18 U.S.C. § 953 — that’s right, the Logan Act — the maximum penalty for which was three years in prison, a $5,000 fine, or both. The charge was that Munoz had engaged in “private correspondence with [the Cuban] government with intent to influence that government’s dispute with the United States.”

Munoz contested the charges, was convicted, and sentenced to 30 months in prison. Proof in the pudding — a Logan Act indictment and, it appears, a conviction. (I say “apparently” here, full disclosure, because the facts state that Munoz was charged with “four counts” and that he was “convicted” — it’s my assumption, probably reasonable, that that language means that he was convicted of all four counts, the last of which was the Logan Act charge. At the very least, he was indicted and charged — more than the C.R.S., and ubiquitously-cited figure of “no indictments in 200 years,” admits to.)

I imagine the failure to track these cases is because LEXIS and other online databases only record appeals. The actual convictions at local courts, unappealed, would never appear on LEXIS. Thus the Congressional Research Service report on the Logan Act, dated 1 Feb 06, was able to make the clearly incorrect statement “there appear to have been no prosecutions under the Act in its more than 200 year history.”

So Pundits, Pontificators, and Snake-oil Purveyors, hold your tongues — before you rely on Congressional Research Service reports, do a little homework.

As to the second claim: whether there’s an actual violation of separation of powers and whether Congress is entitled to conduct foreign relations, of course, it’s a much more delicate and complicated topic. Certainly the act forbids and penalizes “any citizen of the United States . . . who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.” Of course, this begs the question: did the Speaker act with or without the authority of the “United States”? (It also begs the question of whether the Speaker engaged in discussion regarding “disputes or controversies,” or tried to “defeat the measures” of the U.S. — but we’ll pass on that, arguendo). This brings us full circle to the issue of the locus of the foreign authority power under the Constitution.

The Constitution itself gives a framework. First and foremost, it grants to the Executive in Article II, Section 2, “Power, by and with the Advice and Consent of the Senate, to make Treaties,” and Article II, Section 3, empowers the President to “receive Ambassadors and other public Ministers.” Second, Article I, Section 8, grants Congress the power “To regulate Commerce with foreign Nations,” and “To declare War,” and Section 10 forbids States entirely from entering into Treaties, and only permits States to enter into an “Agreement or Compact with . . . a foreign Power” with consent of Congress. Finally, Article III, Section 2, empowers the Judiciary to hear “all Cases affecting Ambassadors, other public Ministers and Consuls . . . to all Cases of admiralty and maritime Jurisdiction; – to Controversies . . . between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

While the various aspects of foreign-relations power is diffused amongst the three branches, the specific power of “negotiation” is typically held to inhere in the Executive:

The Supreme Court, in United States v. Curtiss-Wright Export Corp, 299 U.S. 304 (1936), held that although the power isn’t explicitly given to the President in the Constitution, it’s implicit — much as, one argument you’ll hear frequently today goes, the upholding the sanctity of the “habeas” right, by forbidding in most cases its suspension, is implicit. The Curtiss-Wright Court stated “the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.”

The Court in Curtiss-Wright in support of this proposition cited evolving intent over the history of the Republic: it cited Marshall (“The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations”), and Washington (“The nature of foreign negotiations requires caution, and their success must often depend on secrecy; . . . [t]he necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President . . . To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent”).

So without delving into the particular facts of this case, there’s a very strong case that the Logan Act has not slept, but is still good law (assuming no successful Constitutional challenge on a First Amendment or other basis), and there’s also a colorable argument that current law holds that the foreign-relations power to conduct foreign policy negotiations is exclusively held by the Executive.

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